SENATE COMMITTEE ON JUDICIARY

 

 

April 11, 2005                                                                                                      Hearing Room 343

1:00 P.M.                                                                                                                  Tapes 101 - 102

 

MEMBERS PRESENT:         Sen. Ginny Burdick, Chair

Sen. Charles Starr, Vice-Chair

Sen. Roger Beyer

Sen. Floyd Prozanski

Sen. Charlie Ringo

Sen. Vicki Walker

Sen. Doug Whitsett

 

STAFF PRESENT:                 William E. Taylor, Counsel

Dale Penn, Committee Assistant

 

 

MEASURES/ISSUES HEARD:        

SB 966 – Public Hearing

SB 287 – Work Session

SB 95 – Work Session

SB 253 – Work Session

SB 368 – Work Session

SB 940 – Work Session

SB 946 – Work Session

 

 

These minutes are in compliance with Senate and House Rules.  Only text enclosed in quotation marks reports a speaker’s exact words.  For complete contents, please refer to the tapes.

 

TAPE/#

Speaker

Comments

TAPE 101, A

003

Chair Burdick

Calls the meeting to order as a subcommittee at 1:09 p.m. and opens a public hearing on SB 966.

SB 966 – PUBLIC HEARING

006

William E. Taylor

Counsel.  Describes SB 966 relating to requiring the court to appoint an attorney for the child in certain domestic relations proceedings if the child’s best interests are not adequately represented.

016

Mark Kramer

Attorney, family law.  Submits testimony and testifies in support of SB 966 (EXHIBIT A).  Describes proposed amendments within his testimony packet (Exhibit A).

050

Kramer

Discusses a Supreme Court case dealing with the issue of representation for children.

073

Chair Burdick

Asks about the two proposed amendments in Mr. Kramer’s testimony (Exhibit A).

079

Kramer

Replies with information on the court of appeals appointing counsel in the past.

100

Kramer

Details the responsibilities of the counsel in situations where the child is of age and when they are not.

141

Kramer

Stresses that there should be no fiscal impact from staffing attorneys for SB 966; the court should request volunteers from counsel. 

155

Taylor

Inquires about the possible payment methods for attorneys.

161

Kramer

Responds with information on the funding processes for this bill.

175

Taylor

Wonders what may happen if nobody volunteers to provide counsel.

182

Kramer

States that if that unlikely scenario occurs, there would be no counsel.

188

Julie McFarlane

Supervising Attorney, Juvenile Rights Project.  Submits testimony and testifies in support of SB 966 (EXHIBIT B).  Discusses the situations involving representation for children in these cases.

220

McFarlane

Talks about the helpline available through the Juvenile Rights Project, and its relationship with identifying cases of abuse and neglect.

258

Chair Burdick

Asks about the chart in her testimony dealing with appointment laws in Oregon (Exhibit B).

262

McFarlane

Offers clarification on the appointment laws in Oregon.

267

Chair Burdick

Wonders if a child can only get a lawyer if that child requests it, and how old they must be to ask for representation.

276

McFarlane

Replies with information on the representation of children.

290

Paul Saucy

Family Law Section, Oregon State Bar.  Submits testimony and testifies in opposition to SB 966 (EXHIBIT C).  Details the current procedures for providing representation or evaluators for the needs and wants of children.

349

Saucy

Discusses the proposed amendment supported by Mr. Kramer.  Goes on to talk about the Oregon State Bar’s concerns over this amendment.

380

Saucy

Draws the comparison between this bill and the occurrences in the film Kramer vs. Kramer.

430

Saucy

Comments on the parenting coordinator and other statutes already on the books that protect the rights and needs of the child.

458

Sen. Prozanski

Asks about the court appointed special advocates’ (CASA) stance on this issue.

472

Sen. Whitsett

Inquires about statutory precedent dealing with the assessment of legal fees.

480

Saucy

Replies that this issue is already in the law.

TAPE 102, A

023

Sybil Hebb

Oregon Law Center.  Submits testimony and testifies in support of SB 966 (EXHIBIT D).  Addresses the above question relating to CASA volunteers in these proceedings.

064

Chair Burdick

Closes the public hearing on SB 966, convenes a full committee at 1:40 p.m., and opens a work session on SB 287.

SB 287 – WORK SESSION

069

William E. Taylor

Counsel.  Describes SB 287 relating to creating an exception to the prohibition on the use of hearsay as evidence.  Introduces the -5 and -6 amendments (EXHIBITS E & F).

094

Tim Sylwester

Department of Justice.  Testifies on the proposed amendments.

112

Erik Wasmann

Department of Justice.  Comments on the fairness and equity in current law, and the proposed law after SB 966.

162

Chair Burdick

Inquires about the repercussions of leaving the drafting as it is.

168

Wasmann

Replies with information on the issue of leaving the language in the bill as it is currently, and how the term “reliability” can affect the processes of the case.

189

Ann Munsey

Deputy Public Defender, Office of Public Defense Services.  Submits testimony and testifies on SB 287.  Advocates caution when dealing with exceptions to the use of hearsay as evidence.

245

Chair Burdick

Asks about the word “reliable” in other hearsay exceptions.

249

Munsey

Replies with information on the reliability of evidence accepted under the hearsay rules.

264

Tom Lininger

Professor, University of Oregon Law School.  Addresses the issue of “reliability” in the hearsay exceptions.

297

Chair Burdick

Inquires about the concept and inclusion of the term “reliability.”

302

Sylwester

Talks about the issue of reliability in hearsay evidence exceptions.

328

Wasmann

Discusses the inclusion of hearsay evidence through exceptions.

346

Sen. Prozanski

Discusses the use of the term “reliability” in current statutes as opposed to its use in the -6 amendment.

384

Munsey

Comments on the general hearsay exceptions and the new exception being implemented in this bill.  Cites specific examples of the use of hearsay evidence.

433

Chair Burdick

Asks about the situation cited above, and expresses the possibility of the use of hearsay being thrown out in court.

440

Munsey

Talks about the requirements for proving “reliability” for the exception for hearsay evidence.

472

Sen. Prozanski

Inquires about the applicable nature for this term in the other requirements for allowing hearsay evidence.

TAPE 101, B

017

Sylwester

Discusses the constitutional concerns facing the legislature on this issue in the past, and the reasoning for choosing this drafting language.

044

Sen. Walker

Asks about the issue of inclusion of hearsay evidence being under the province of the courts.

046

Lininger

Replies with information on the province of the courts with the inclusion of hearsay evidence.

060

Sen. Starr

MOTION:  Moves to ADOPT SB 287-5 amendments dated 4/11/05.

065

Sen. Prozanski

Commends the panel for working on this difficult bill.

081

Chair Burdick

Thanks the panel for their work.

091

Sen. Whitsett

States his support for the -6 amendment including the term “reliable.”

 

Chair Burdick

VOTE:  5-1-1

AYE:               5 - Beyer, Prozanski, Starr C., Walker, Burdick

NAY:               1 - Whitsett

EXCUSED:     1 - Ringo

106

Chair Burdick

The motion CARRIES.

110

Sen. Starr

MOTION:  Moves SB 287 to the floor with a DO PASS AS AMENDED recommendation.

 

 

VOTE:  6-0-1

EXCUSED:  1 - Ringo

113

Chair Burdick

Hearing no objection, declares the motion CARRIED.

SEN. PROZANSKI will lead discussion on the floor.

119

Chair Burdick

Closes the work session on SB 287 and opens a work session on SB 95.

SB 95 – WORK SESSION

121

William E. Taylor

Counsel.  Describes SB 95 relating to expanding the membership of the Oregon Criminal Justice Commission.  Introduces and discusses the -1, -2 & -3 amendments (EXHIBITS H – K).

153

Timothy Travis

Oregon Judicial Department.  Testifies in support of SB 95.  Talks about the effects of the -3 amendments.

190

Chair Burdick

Wonders about certain drafting language amendments clarifying the effects of the bill.

195

Travis

Addresses the drafting language in the bill and explains their choices.

209

Craig Prins

Executive Director, Criminal Justice Commission.  Testifies in support of SB 95.

215

Chair Burdick

Asks if they support all three amendments.

217

Prins

Responds in the affirmative.

219

Starr

Inquires about a fiscal impact for the proposed amendments.

221

Prins

Replies that there might be a fiscal for the -2 amendment.

231

Taylor

Wonders if this bill should head to Ways and Means.

232

Prins

Responds that he believes it does.  States that this bill does not require rushing, and would prefer to wait for the whole bill.

268

Sen. Beyer

Asks how this bill fits into the still undefined meth plan.  States his opposition to the original bill and the -1 amendment.

292

Travis

Discusses the resources available to the Criminal Justice Commission.

316

Sen. Prozanski

Talks about the committee’s hesitance to expand the Commissions membership.

326

Sen. Beyer

Comments on the vacancies already on the commission, and how there are already budget concerns; wonders why they should add several more positions to the commission.

357

Sen. Walker

Desires clarification on the membership count.

375

Taylor

Points out how and why the membership count is needed to be at fifteen.

398

Chair Burdick

Closes the work session on SB 95 and opens a work session on SB 253.

SB 253 – WORK SESSION

401

William E. Taylor

Counsel.  Describes SB 253 relating to enacting an Interstate Compact for Juveniles.  Introduces the -1 amendment (EXHIBIT K).

435

Chair Burdick

Asks if there needs to be a referral to Ways and Means.

439

Taylor

Replies yes, and gives information on the transfer of funds.

465

Sen. Starr

MOTION:  Moves to ADOPT SB 253-1 amendments dated 3/28/05.

371

Sen. Beyer

States his opposition to SB 253, even with the -1 amendment.  Talks about the need for the Compact to pass 32 other states before it is enacted.

TAPE 102, B

026

Taylor

Explains the additional expense from the compact, but the $200,000 is a transfer from one agency to another in order to pay for the administration of the Compact.

047

Sen. Beyer

Redacts his opposition to the -1 amendment, but continues his opposition to the bill as a whole.

049

Sen. Prozanski

Discusses Oregon’s roll in this Interstate Compact.

067

Sen. Beyer

States the conflicts present to getting this bill enacted (budget problems, statutory authority, etc.).

075

Sen. Walker

Talks about the sunset provision placed by North Dakota in a similar bill.

086

Taylor

Declares that regardless of what occurs, the bill needs to travel to Ways and Means.

100

Sen. Whitsett

Details his hesitance to support an appointed commission that writes statutes and levies taxes which will affect Oregonians.

111

Taylor

Discusses the effects of enacting the Compact from a state and federal perspective.

124

Chair Burdick

Closes the work session on SB 253 and opens a work session on SB 368.

SB 368 – WORK SESSION

127

William E. Taylor

Counsel.  Describes SB 368 relating to prohibiting audio visually recording motion pictures in motion picture theaters without the consent of theater owners.  Introduces the -1 amendment (EXHIBIT L).

150

Sen. Starr

MOTION:  Moves to ADOPT SB 368-1 amendments dated 2/14/05.

 

 

VOTE:  6-0-1

EXCUSED:  1 - Ringo

152

Chair Burdick

Hearing no objection, declares the motion CARRIED.

155

Sen. Starr

MOTION:  Moves SB 368 to the floor with a DO PASS AS AMENDED recommendation.

 

 

VOTE:  6-0-1

EXCUSED:  1 - Ringo

157

Chair Burdick

Hearing no objection, declares the motion CARRIED.

SEN. BURDICK will lead discussion on the floor.

159

Chair Burdick

Closes the work session on SB 368 and opens a work session on SB 940.

SB 940 – WORK SESSION

160

William E. Taylor

Counsel.  Describes SB 940 relating to requiring the sheriff to fix the date for a foreclosure sale.  Introduces the -1 amendment (EXHIBIT M).

184

Sen. Starr

MOTION:  Moves to ADOPT SB 940-1 amendments dated 4/4/05.

 

 

VOTE:  6-0-1

EXCUSED:  1 - Ringo

188

Chair Burdick

Hearing no objection, declares the motion CARRIED.

190

Sen. Starr

MOTION:  Moves SB 940 to the floor with a DO PASS AS AMENDED recommendation.

192

Sen. Whitsett

Addresses the issue of a district foreclosing on a property and then selling off the water rights.

205

Kristina McNitt

Oregon Water Resources Congress.  Testifies in support of SB 940 and stresses that she does not believe that the bill addresses water rights in anyway.

226

Taylor

Discusses current law on water rights during foreclosures.

279

Sen. Walker

Comments on the benefits of the bill.

 

 

VOTE:  6-0-1

EXCUSED:  1 - Ringo

285

Chair Burdick

Hearing no objection, declares the motion CARRIED.

SEN. WHITSETT will lead discussion on the floor.

293

Chair Burdick

Closes the work session on SB 940 and opens a work session on SB 946.

SB 946 – WORK SESSION

294

William E. Taylor

Counsel.  Describes SB 946 relating to requiring the judge to order a report of proceedings in aggravated murder and murder trials.  Introduces the -2 amendment (EXHIBIT N).

317

Sen. Walker

Addresses the concerns of the committee from the public hearing.

332

Sen. Starr

MOTION:  Moves to ADOPT SB 946-2 amendments dated 3/30/05.

 

 

VOTE:  6-0-1

EXCUSED:  1 - Ringo

336

Chair Burdick

Hearing no objection, declares the motion CARRIED.

338

Sen. Starr

MOTION:  Moves SB 968 to the floor with a DO PASS AS AMENDED recommendation and BE REFERRED to the committee on Ways and Means.

 

 

VOTE:  6-0-1

EXCUSED:  1 - Ringo

344

Chair Burdick

Hearing no objection, declares the motion CARRIED.

 

 

 

 

 

EXHIBIT SUMMARY

 

  1. SB 966, written testimony, Mark Kramer, 7 pp
  2. SB 966, written testimony, Julie McFarlane, 18 pp
  3. SB 966, written testimony, Paul Saucy, 2 pp
  4. SB 966, written testimony, Sybil Hebb, 2 pp
  5. SB 287, -5 amendment, staff, 1 p
  6. SB 287, -6 amendment, staff, 1 p
  7. SB 287, written testimony, 1 p
  8. SB 95, -1 amendment, staff, 1 p
  9. SB 95, -2 amendment, staff, 3 pp
  10. SB 95, -3 amendment, staff, 2 pp
  11. SB 253, -1 amendment, staff, 2 pp
  12. SB 368, -1 amendment, staff, 1 p
  13. SB 940, -1 amendment, staff, 1 p
  14. SB 946, -2 amendment, staff, 1 p